Second Regular Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 06-0024.01 Julie Pelegrin HOUSE BILL 06-1090 HOUSE SPONSORSHIP Green, SENATE SPONSORSHIP (None), House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning unlawful sexual behavior. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Section 1: Requires a presentence report prepared for a sex offender to include, where appropriate, the results of the risk assessment screening. Requires each person convicted as a sex offender to receive a presentence report. Sections 2 and 3: Adds conforming language to specify that a person identified as a sexually violent predator may be subject to community notification. Sections 4-7: Removes the civil and criminal statutes of limitations for sex offenses and sexual offenses against children that are committed by adults. Makes the extended statute of limitations for civil actions applicable to actions alleging vicarious liability. Removes the limitation on damages for actions brought after a specified period. Makes conforming amendments. Section 8: Requires a local law enforcement agency that chooses to post sex offender registration information on its website to include on the website information to assist members of the public in protecting themselves from unlawful sexual behavior or a link to the information on the Colorado bureau of investigation website. Instructs the local law enforcement agency to work with the sex offender management board and sexual assault victims' advocacy groups in preparing the information. Section 9: Directs the department of corrections and the judicial department to jointly submit to the judiciary committees and the governor an annual report concerning sexually violent predators. Specifies the contents of the report. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 16-11-102 (1) (b), Colorado Revised Statutes, is amended to read: 16-11-102. Presentence or probation investigation. (1) (b) Any Each presentence report prepared regarding any a sex offender, as defined in section 16-11.7-102 (2), with respect to any offense committed on or after January 1, 1996, shall contain the results of an evaluation and identification conducted pursuant to article 11.7 of this title. In addition, the presentence report shall include, where appropriate as provided in section 18-3-414.5, C.R.S., the results of the risk assessment screening developed pursuant to section 16-11.7-103 (4) (c.5). Notwithstanding the provisions of subsection (4) of this section, a presentence report shall be prepared for each person convicted as a sex offender, as defined in section 16-11.7-102 (2), and the court may not dispense with said presentence examination and report. SECTION 2. 16-11.7-103 (4) (c.5), Colorado Revised Statutes, is amended to read: 16-11.7-103. Sex offender management board - creation - duties - repeal. (4) The board shall carry out the following duties: (c.5) On or before January 1, 1999, the board shall consult on and approve the risk assessment screening instrument developed by the division of criminal justice to assist the sentencing court in determining the likelihood that an offender would commit one or more of the offenses specified in section 18-3-414.5 (1) (a) (II), C.R.S., under the circumstances described in section 18-3-414.5 (1) (a) (III), C.R.S. No state general fund moneys shall be used to develop the risk assessment screening instrument. In carrying out this duty, the board shall consider sex offender risk assessment research and shall consider as one element the risk posed by a sex offender who suffers from a mental abnormality, psychosis, or personality disorder that makes the person more likely to engage in sexually violent predatory offenses. For purposes of this subsection (4) only, "mental abnormality" means a congenital or acquired condition that affects the emotional or volitional capacity of a person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a significant risk to the health and safety of other persons. If a defendant is found to be a sexually violent predator, the defendant shall be required to register pursuant to article 22 of this title and may be subject to community notification, as provided in part 9 of article 13 of this title. SECTION 3. 18-3-414.5 (2) and (3), Colorado Revised Statutes, are amended to read: 18-3-414.5. Sexually violent predator. (2) At the time a presentence investigation report is conducted for a defendant who is convicted of one of the offenses specified in subparagraph (II) of paragraph (a) of subsection (1) of this section, the probation department shall, in coordination with the evaluator completing the mental health sex offense specific evaluation, complete the sexually violent predator risk assessment. Based on the results of such assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator. If the defendant is found to be a sexually violent predator, the defendant shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and may be subject to community notification, as provided in part 9 of article 13 of title 16, C.R.S. (3) When considering release on parole for an offender who was convicted of one of the offenses specified in subparagraph (II) of paragraph (a) of subsection (1) of this section, the parole board shall make specific findings concerning whether the offender is a sexually violent predator, based on the results of a sexually violent predator assessment conducted by the department of corrections. If the parole board finds that the offender is a sexually violent predator, the offender shall be required to register pursuant to the provisions of section 16-22-108, C.R.S., and may be subject to community notification, as provided in part 9 of article 13 of title 16, C.R.S. SECTION 4. 16-5-401 (1) (a), (1) (c), (6), (7), (8), and (9), Colorado Revised Statutes, are amended, and the said 16-5-401 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 16-5-401. Limitation for commencing criminal proceedings and juvenile delinquency proceedings. (1) (a) Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below: Murder, kidnapping, treason, any sex offense committed by an adult regardless of the penalty provided, and any forgery regardless of the penalty provided: No limit Attempt, conspiracy, or solicitation to commit murder; attempt, conspiracy, or solicitation to commit kidnapping; attempt, conspiracy, or solicitation to commit treason; attempt, conspiracy, or solicitation by an adult to commit any sex offense regardless of the penalty provided; and attempt, conspiracy, or solicitation to commit any forgery regardless of the penalty provided: No limit Other felonies: Three years Misdemeanors: Eighteen months Class 1 and 2 misdemeanor traffic offenses: One year Petty offenses: Six months (c) For purposes of this section: (I) "Delinquent act" has the same meaning as defined in section 19-1-103 (36), C.R.S. (II) "Juvenile" means a child as defined in section 19-1-103 (18), C.R.S. (III) "Petition in delinquency" means any petition filed by a district attorney pursuant to section 19-2-512, C.R.S. (IV) "Sex offense" means an act charged as a felony or misdemeanor pursuant to section 18-3-402, C.R.S., or section 18-3-403, C.R.S., as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child under fifteen years of age, or under section 18-3-405, 18-3-405.3, 18-6-301, 18-6-302, 18-6-402, 18-6-403, 18-6-404, 18-7-402, 18-7-403, 18-7-403.5, 18-7-404, 18-7-405, 18-7-405.5, or 18-7-406, C.R.S. (1.5) The provisions of subsection (1) of this section pertaining to sex offenses shall apply to sex offenses committed on or after July 1, 2006, and to any sex offenses committed prior to July 1, 2006, for which the statute of limitations has not run on July 1, 2006. (6) The period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to any offense or delinquent act charged under section 18-3-402, C.R.S., or section 18-3-403, C.R.S., as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child under fifteen years of age, or under section 18-3-405, 18-3-405.3, 18-6-302, 18-6-402, 18-6-403, 18-6-404, 18-7-402, 18-7-403, 18-7-403.5, 18-7-404, 18-7-405, 18-7-405.5, or 18-7-406, C.R.S., or charged as criminal attempt, conspiracy, or solicitation to commit any of the acts specified in any of said sections. (7) When the victim at the time of the commission of the offense or delinquent act is a child under fifteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to a felony charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a felony, and such period shall be extended for an additional three years and six months as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. (8) (a) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or a juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act: (I) Charged under section 18-3-402, 18-3-403, as it existed prior to July 1, 2000, 18-3-405, 18-3-405.3, 18-6-302, 18-6-402, 18-6-403, 18-6-404, 18-7-402, 18-7-403, 18-7-403.5, 18-7-404, 18-7-405, 18-7-405.5, or 18-7-406, C.R.S.; (II) Charged as a felony under section 18-3-404, C.R.S.; or (III) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraphs (I) and (II) of this paragraph (a). (a.3) If the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or a juvenile may be prosecuted shall be ten years after such victim reaches the age of eighteen years as to any offense or delinquent act: (I) Charged as a felony under section 18-3-402, 18-3-403, as it existed prior to July 1, 2000, 18-3-404, 18-3-405, 18-3-405.3, 18-3-405.5, 18-6-301, 18-6-302, 18-6-402, 18-6-403, 18-6-404, 18-7-402, 18-7-403, 18-7-403.5, 18-7-404, 18-7-405, 18-7-405.5, or 18-7-406, C.R.S.; or (II) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.3). (a.5) In any case in which the identity of the defendant is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3) (a) (III) (B), C.R.S., within ten years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense as to any offense charged: (I) Under section 18-3-402, 18-3-403, as it existed prior to July 1, 2000, 18-3-405, 18-3-405.3, or 18-6-302, C.R.S.; or (II) As criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.5). (b) This subsection (8) shall apply to offenses and delinquent acts committed on or after July 1, 1984 July 1, 2006, and to any offenses and delinquent acts committed prior to July 1, 2006, for which the statute of limitations has not run on July 1, 2006. (9) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or a juvenile may be prosecuted shall be five years after the commission of the offense or delinquent act as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. This subsection (9) shall apply to offenses and delinquent acts committed on or after January 1, 1986 July 1, 2001. SECTION 5. Repeal. 16-5-401.1, Colorado Revised Statutes, is repealed as follows: 16-5-401.1. Legislative intent in enacting section 16-5-401 (6) and (7). (1) The intent of the general assembly in enacting section 16-5-401 (6) and (7) in 1982 was to create a ten-year statute of limitations as to offenses and delinquent acts specified in said subsections committed on or after July 1, 1979. (2) (Deleted by amendment, L. 94, p. 1050,  4, effective July 1, 1994.) SECTION 6. 18-3-411 (2), Colorado Revised Statutes, is amended to read: 18-3-411. Sex offenses against children - unlawful sexual offense defined - limitation for commencing proceedings - evidence - statutory privilege. (2) (a) (I) No person shall be A juvenile shall not be prosecuted, tried, or punished for an unlawful sexual offense, other than the misdemeanor offenses specified in sections 18-3-402 and 18-3-404, unless the indictment, information, complaint, or action for the same is found or instituted within ten years after commission of the offense No person shall be or within ten years after the victim reaches eighteen years of age, whichever is later. The statute of limitations specified in this subparagraph (I) shall apply to all felony offenses specified in subsection (1) of this section that are alleged to have occurred on or after July 1, 2006, and to any of said felony offenses alleged to have occurred prior to July 1, 2006, for which the statute of limitations has not run on July 1, 2006. (II) A juvenile shall not be prosecuted, tried, or punished for a misdemeanor offense specified in section 18-3-402 or 18-3-404, unless the indictment, information, complaint, or action for the same is found or instituted within five years after the commission of the offense. The ten-year five-year statute of limitations shall apply to all misdemeanor offenses specified in subsection (1) of this section which that are alleged to have occurred on or after July 1, 1979, but prior to July 1, 1992 July 1, 2001. (a.3) An adult may be prosecuted, tried, or punished for commission of an unlawful sexual offense at any time after commission of the offense. The provisions of this paragraph (a.3) shall apply to any unlawful sexual offense committed on or after July 1, 2006, and to any unlawful sexual offense committed prior to July 1, 2006, for which the statute of limitations has not run on July 1, 2006. (b) No person shall be prosecuted, tried, or punished for an unlawful sexual offense charged as a felony unless the indictment, information, complaint, or action for the same is found or instituted within ten years after the victim reaches the age of eighteen years. The ten-year statute of limitations shall apply to all felony offenses specified in subsection (1) of this section which are alleged to have occurred on or after July 1, 1992. SECTION 7. 13-80-103.7, Colorado Revised Statutes, is amended to read: 13-80-103.7. General limitation of actions - sexual assault or sexual offense against a child. (1) (a) Notwithstanding any other statute of limitations specified in this article, or any other provision of law that can be construed to reduce the statutory period set forth in this section, any civil action based on a sexual assault or a sexual offense against a child that is allegedly committed by a juvenile shall be commenced within six years after a disability has been removed for a person under disability, as such term is defined in subsection (3.5) of this section, or within six years after a cause of action accrues, whichever occurs later, and not thereafter. Nothing in this section shall be construed to extend the statutory period with respect to vicarious liability. (b) (I) Notwithstanding any other statute of limitations specified in this article, or any other provision of law that can be construed to reduce the statutory period set forth in this section, any civil action based on a sexual assault or a sexual offense against a child that is allegedly committed by an adult may be commenced against any person at any time after a cause of action accrues. (II) It is the intent of the general assembly in enacting this paragraph (b) to extend the statute of limitations as to civil actions described in this paragraph (b) for which the applicable statute of limitations in effect prior to July 1, 2006, has not yet run on July 1, 2006. (2) For the purpose of this section, "sexual assault" means subjecting another person of any age to sexual contact, as defined in section 18-3-401 (4), C.R.S.; sexual intrusion, as defined in section 18-3-401 (5), C.R.S.; or sexual penetration, as defined in section 18-3-401 (6), C.R.S. (3) For the purposes of this section, "sexual offense against a child" shall include all offenses listed in section 18-3-411, C.R.S. (3.5) (a) For the purpose of this section, "person under disability" means any person who is a minor under eighteen years of age, a mental incompetent, or a person under other legal disability and who does not have a legal guardian. "Person under disability" also includes a victim of a sexual assault when the victim is in a special relationship with the perpetrator of the assault or is a victim of a sexual offense against a child or is a victim who is residing in an institutional facility, such as a nursing home, regional center, or residential facility for the treatment and care of persons with mental illness or for the care of persons with developmental disabilities and where the victim is psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom. For the purpose of this subsection (3.5), "special relationship" means a relationship between the victim and the perpetrator of the sexual assault which is a confidential, trust-based relationship, such as attorney-client, doctor-patient, psychotherapist-patient, minister-parishioner, teacher-student, or familial relationship. It is the intent of the general assembly to leave in place the six-year limitation for adults subjected to a sexual assault except in the situations described in this paragraph (a) in which the victim is in a special relationship with the perpetrator of the assault. In the circumstances in which a victim is in a special relationship with the perpetrator of the assault or is In a case involving a victim of a sexual offense against a child or a victim who is residing in an institutional facility, such as a nursing home, regional center, or residential facility for the treatment and care of persons with mental illness or for the care of persons with developmental disabilities and where the victim is psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom, the six-year limitation set forth in paragraph (a) of subsection (1) of this section shall be tolled until the disability is removed. For the purpose of this section, where the plaintiff is a victim of a series of sexual assaults or sexual offenses against a child, the plaintiff need not establish which act of a series of acts caused the plaintiff's injury, and the six-year statute of limitations set forth in paragraph (a) of subsection (1) of this section shall commence with the last in the series of acts, subject to the provisions of this section regarding disability. However, as elements of the cause of action, a person under disability who is psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom shall have the burden of proving that the assault or offense occurred and that such person was actually psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom. (b) Notwithstanding the provisions of section 13-90-107, the filing of a claim pursuant to this subsection (3.5) is deemed to be a limited waiver of the doctor-patient privilege or the psychologist-patient privilege to persons who are necessary to resolve the claim, and a doctor or psychologist who provided medical care and treatment or counseling and treatment to the plaintiff for injuries upon which an action under this subsection (3.5) is based may be examined as a witness. All medical records pertaining to any relevant medical care and treatment or counseling and treatment of the plaintiff are admissible into evidence in an action brought pursuant to this subsection (3.5) and shall be available for inspection upon request by the parties to the action. (c) If the plaintiff brings a civil action under this subsection (3.5) fifteen years or more after the plaintiff attains the age of eighteen, the plaintiff may only recover damages for medical and counseling treatment and expenses, plus costs and attorney fees. (d) It is the intent of the general assembly in enacting this subsection (3.5) to extend the statute of limitations as to civil actions based on offenses described in paragraph (a) of subsection (1) of this section as amended on July 1, 1993, for which the applicable statute of limitations in effect prior to July 1, 1993, has not yet run on July 1, 1993. (3.7) An action may not be brought pursuant to subsection (3.5) of this section if the defendant is deceased or is incapacitated to the extent that the defendant is incapable of rendering a defense to the action. (4) It is the intent of the general assembly in enacting this section to extend the statute of limitations as to civil actions based on offenses described in subsection (1) of this section for which the applicable statute of limitations in effect prior to July 1, 1990, has not yet run on July 1, 1990. Notwithstanding the provisions of section 13-90-107, the filing of a claim pursuant to this section is deemed to be a limited waiver of the doctor-patient privilege or the psychologist-patient privilege to persons who are necessary to resolve the claim, and a doctor or psychologist who provided medical care and treatment or counseling and treatment to the plaintiff for injuries upon which an action under this section is based may be examined as a witness. All medical records pertaining to any relevant medical care and treatment or counseling and treatment of the plaintiff are admissible into evidence in an action brought pursuant to this section and shall be available for inspection upon request by the parties to the action. (5) The provisions of this section shall not be construed to extend or suspend the statute of limitations or statute of repose applicable to a claim alleging negligence in the course of providing professional services in the practice of medicine. This subsection (5) shall not be construed to preclude pursuing a civil action pursuant to this section alleging a sexual offense based on a legal theory other than negligence in the course of providing professional services in the practice of medicine, unless the sexual assault forms the basis for a claim of such negligence. SECTION 8. 16-22-112 (3) (b) and (3) (e), Colorado Revised Statutes, are amended, and the said 16-22-112 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 16-22-112. Release of information - law enforcement agencies. (3) (b) At its discretion, a local law enforcement agency may release information regarding any person registered with the local law enforcement agency pursuant to this article to any person who does not reside within the local law enforcement agency's jurisdiction or may post the information specified in paragraph (e) of this subsection (3) paragraph (b) of subsection (2) of this section on the law enforcement agency's website. If a local law enforcement agency does not elect to release information regarding any person registered with the local law enforcement agency to a person not residing within the local law enforcement agency's jurisdiction, the local law enforcement agency may submit a request from the person to the CBI. (e) A local law enforcement agency may post on its website sex offender registration information of a person from its registration list only if the person is: (I) An adult convicted of a felony requiring the adult to register pursuant to section 16-22-103; (II) An adult convicted of a second or subsequent offense of any of the following misdemeanors: (A) Sexual assault as described in section 18-3-402 (1) (e), C.R.S.; (B) Unlawful sexual contact as described in section 18-3-404, C.R.S.; (C) Sexual assault on a client as described in section 18-3-405.5 (2), C.R.S.; (D) Sexual exploitation of a child by possession of sexually exploitive material as described in section 18-6-403 (3) (b.5), C.R.S.; (E) Indecent exposure as described in section 18-7-302, C.R.S.; or (F) Sexual conduct in a penal institution as described in section 18-7-701, C.R.S.; (III) A juvenile adjudicated for two or more offenses involving unlawful sexual behavior or for a crime of violence as defined in section 18-1.3-406, C.R.S.; or (IV) A juvenile who is required to register pursuant to section 16-22-103 because he or she was adjudicated for an offense that would have been a felony if committed by an adult and has failed to register as required by section 16-22-103. (3.5) To assist members of the public in protecting themselves from persons who commit offenses involving unlawful sexual behavior, a local law enforcement agency that chooses to post sex offender registration information on its website shall either post educational information concerning protection from sex offenders on its website or provide a link to the educational information included on the CBI website maintained pursuant to section 16-22-111. A local law enforcement agency that posts the educational information shall work with the sex offender management board created pursuant to section 16-11.7-103 and sexual assault victims' advocacy groups in preparing the educational information. SECTION 9. 18-3-414.5, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 18-3-414.5. Sexually violent predators - assessment - annual report. (4) On or before January 15, 2007, and on or before January 15 each year thereafter, the judicial department and the department of corrections shall jointly submit to the judiciary committees of the senate and the house of representatives, or their successor committees, and to the governor a report specifying the following information: (a) The number of offenders evaluated pursuant to this section in the preceding twelve months; (b) The number of sexually violent predators identified pursuant to this section in the preceding twelve months; (c) The total number of sexually violent predators in the custody of the department of corrections at the time of the report, specifying those in incarceration, those housed in community corrections, and those on parole, including the level of supervision for each sexually violent predator on parole; (d) The length of sentence imposed on each sexually violent predator in the custody of the department of corrections at the time of the report; (e) The number of sexually violent predators discharged from parole during the preceding twelve months; (f) The total number of sexually violent predators on probation at the time of the report and the level of supervision of each sexually violent predator on probation; (g) The number of sexually violent predators discharged from probation during the preceding twelve months; and (h) Any additional information requested by a member of the judiciary committees of the senate and the house of representatives, or their successor committees, or by the governor. SECTION 10. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.